MALABA
JA:
This
is an appeal from a judgment of the Labour Court upholding a decision
of an arbitrator setting aside the dismissal of the appellant's
employees who had been found guilty of an act or conduct inconsistent
with the fulfilment of express or implied conditions of contracts of
employment in that they had taken part in an unlawful collective job
action.
The
appellant's employees were members of the respondent. They engaged
in an unlawful collective job action from 4 to 23 October 2006. It is
common cause that at the time the employees engaged in the collective
job action on 4 October 2006 they had not given the fourteen days
written notice of their intent to resort to such action on that day.
They had not satisfied the other matters required under section
104(2) of the Labour Relations Act [Cap. 28:01] (“the Act”).
After
the unlawful collective job action ended, the appellant commenced
disciplinary proceedings against each employee who had taken part in
the collective job action.
On
8 December 2006 the employees were individually charged with conduct
inconsistent with the fulfilment of the express or implied conditions
of his contract of employment in that he had taken part in the
unlawful collective job action. The allegation was that the employees
had contravened section 12B(2)(b)(1) of the Act.
The
disciplinary hearings were conducted in terms of section 2 of the
Labour Relations (General Conditions of Employment) (Termination of
Employment) Regulations S.I. 130 of 2003 (“the Regulations”).
The
employees were found guilty of the misconduct charge and dismissed
from employment.
The
respondent took up the case of the dismissal of the employees with a
Labour Officer on the ground that the dismissal constituted an unfair
labour practice.
The
contention was that the appellant should not have charged the
employees individually with conduct they committed collectively as a
group. The argument was that disciplinary proceedings ought to have
been commenced against the employees as a group on the ground that
they took part in an unlawful collective job action in terms of the
provisions of Part XIII of the Act.
The
appellant accepted that the employees had taken part in an unlawful
collective job action. It denied the accusation that in instituting
disciplinary proceedings against each employee on the charge that he
had committed an act or conduct inconsistent with the fulfilment of
the express or implied conditions of the contract of employment in
that he had taken part in an unlawful collective job action it
committed an unfair labour practice.
The
argument was that there was no provision in Part XIII of the Act to
the effect that an employer who wishes to take disciplinary action
against an employee for having taken part in an unlawful collective
job action can only do so in disciplinary proceedings commenced
against the employees who took part in such action as a group.
The
Labour Officer failed to conciliate the dispute and referred the case
for arbitration in terms of section 93(5) of the Act.
The
arbitrator heard the case and determined that the appellant ought to
have proceeded in terms of sections 106 and 107 of the Act and
charged the employees as a group with having taken part in an
unlawful collective job action. The dismissal of the employees was
adjudged an unfair labour practice. It was set aside and an order of
reinstatement or payment of damages in lieu thereof made.
On
appeal to the Labour Court the decision of the arbitrator was upheld
hence the appeal to this Court.
The
question that falls for determination is whether there is a provision
in Part XIII of the Act to the effect that an employer who wishes to
take disciplinary action against an employee who took part in an
unlawful collective job action must institute disciplinary
proceedings against all the employees involved in such action and
charge them with having taken part in an unlawful collective job
action.
The
contention that the appellant ought to have charged the employees as
a group with having taken part in an unlawful collective job action
and proceeded in terms of the provisions of Part XIII of the Act was
based on the interpretation of section 8 of Category 4 of the
appellant's employment code (“the code”).
A
list of what is considered to be serious acts of misconduct is given
under Category 4 of the Code. In section 8 the following is stated:
“8.
Instigating and/or taking part in an unlawful job action – to be
handled in terms of Labour Relations Act [Cap. 28:01].”
There
is, of course, no specific reference to Part XIII of the Act in
section 8 of Category 4 of the Code.
Even
if the appellant had decided to charge the employees with having
taken part in an unlawful collective job action there would have been
nothing in the provisions of section 8 compelling it to conduct the
disciplinary proceedings in terms of the provisions of Part XIII of
the Act.
Part
XIII is headed “Collective Job Action”. It contains sections 102
to 112, the provisions of which deal with matters relating to or
arising from a collective job action.
The
sections said to contain the provisions which the appellant was found
to have unlawfully failed to observe are sections 104, 106 and 107.
Section
104(1) gives all employees, workers committees and trade unions the
right to resort to collective job action to resolve disputes of
interest. The right is given subject to specific conditions of its
exercise prescribed under subs (2).
A
collective job action resorted to without the mandatory requirements
for a lawful exercise of the right prescribed under subs (2) of
section 104 having been strictly satisfied is an unlawful collective
job action.
Specific
procedures and remedies for the protection of the rights for the
parties affected by the unlawful collective job action are provided
under sections 106 and 107.
Section
106 provides that when a workers' committee or trade union, for
example, “threatens, recommends, encourages, incites, organizes or
engages” in an unlawful collective job action, the Minister, acting
on his own initiative or upon the application of any person affected
or likely to be affected by the unlawful collective job action, may
issue an order calling upon the workers' committee or trade union
concerned (“the responsible person”) to appear before the Labour
Court to show cause why a Disposal Order should not be made in
relation to the unlawful collective job action.
The
Show Cause Order must specify the date, time and place at which the
responsible person must appear before the Labour Court. The order may
direct that pending the issuance of the Disposal Order, the unlawful
collective job action concerned be terminated, postponed or
suspended.
Section
107 provides that on the return day the Labour Court must inquire
into the matter and may after the inquiry issue a Disposal Order
directing that the unlawful collective job action be terminated,
postponed or suspended. (the underlining is mine for emphasis).
Section
107(3) provides that the Disposal Order may provide for the employer,
in his discretion, to dismiss summarily specified employees or
categories of employees engaged in the unlawful collective job action
or provide for the dismissal of specified employees or categories of
employees engaged in the unlawful collective job action.
The
inquiry the Labour Court is required to carry out before issuing a
Disposal Order as well as the right it may give to the employer to
dismiss employees found to be threatening or engaging in an unlawful
collective job action, implies that the Show Cause Order may take the
place of a charge of misconduct in disciplinary proceedings and the
inquiry the hearing thereof.
The
disciplinary action which the Labour Court may order or may authorize
the employer to take against the employees is not the primary object
of the provisions of sections 106 and 107 of the Act. The primary
purpose of the provisions of sections 106 and 107 is to provide
procedures and remedies for the disposal of an unlawful collective
job action.
The
right given to an employer under section 107(3) of the Act to dismiss
specified employees or categories of employees who threaten or engage
in an unlawful collective job action is dependent upon the
discretionary remedies. It is up to the Labour Court to decide
whether to provide under the Disposal Order for the dismissal of
specified employees or categories of employees. It is also up to the
Labour Court to decide whether to give the employer under the
Disposal Order the right to dismiss specified employees or categories
of employees who threaten or engage in an unlawful collective job
action.
The
right to dismiss is dependent upon the exercise of discretion by the
Labour Court.
Without
the initiation of the procedure leading to the issuance of the
Disposal Order and the exercise of discretion by the Labour Court in
his favour, an employer would have no right to dismiss employees who
threaten or engage in an unlawful collective job action in terms of
any of the provisions of Part XIII of the Act.
The
procedure and remedies under sections 106 and 107 of the Act are, in
my view, applicable to the disposal of an unlawful collective job
action being threatened or engaged in at the time the Show Cause
Order is made.
There
is nothing in the language of the relevant provisions of the Act to
show that the intention of the legislature is that the procedure and
remedies prescribed thereunder be applied to an unlawful collective
job action which has ended on its own without a Disposal Order having
been issued in respect of it.
One
can hardly think of such action which ceased on its own being made a
subject of a Show Cause Order or Disposal Order directing that it be
terminated, postponed or suspended.
The
unlawful collective job action engaged in by the appellant's
employees ended on 23 October 2006 without a Show Cause Order having
been issued in terms of section 106 of the Act.
The
disciplinary proceedings against the employees commenced on 8
December.
The
provisions of sections 106 and 107 of the Act were clearly not
applicable to the determination of the appellant's right to dismiss
the employees concerned.
Where
then did the appellant derive the right to dismiss the employees?
The
appellant did not charge the employees with having taken part in the
unlawful collective job action. It charged each employee with an act
or conduct inconsistent with the fulfilment of the express or implied
conditions of his contract of employment in that he had taken part in
an unlawful collective job action.
The
charge was in terms of section 12(B)(2)(b)(i) of the Act as read with
section 2 of the Regulations which recognize the common law right of
an employer to charge an employee with such conduct. Section 12B of
the Act provides that:
“(1)
Every employee has the right not to be unfairly dismissed.
(2)
An employee is unfairly dismissed –
(a)
if, subject to subsection (3), the employer fails to show that he
dismissed the employee in terms of an employment code; or
(b)
if in the absence of an employment code the employer fails to show
that when dismissing the employee he had good cause to believe that
the employee was guilty of –
(i)
any act, conduct or omission inconsistent with the fulfilment of the
express or implied conditions of his contract;
(ii)…”
Subsection
(3) of section 12B makes provision for cases of constructive
dismissal.
Section
2 of the Regulations provides that:
“(2)
For the avoidance of doubt it is declared that no employer shall
summarily or otherwise terminate a contract of employment with an
employee unless –
(a)
the termination is in terms of an employment code which is registered
in terms of section 101 of the Act; or
(b)…;
or
(c)…;
or
(d)
the employee is dismissed on any of the grounds specified in para (b)
of section 12B of the Act.”
The
employment code did not have a section prohibiting as an act of
misconduct an act or conduct inconsistent with the fulfilment of the
express or implied conditions of the employee's contract of
employment.
For
an employer to have good cause to believe that an employee is guilty
of the act or conduct specified in section 12B(2)(b)(i) of the Act he
has to charge the employee with having committed that act or conduct,
give him an opportunity to answer the charge, hold a disciplinary
hearing and make a finding of facts on which he believes the employee
is guilty as charged.
The
contention advanced by Mr Biti on behalf of the respondent was not
that participating in an unlawful collective job action was wrongly
found to be an act or conduct inconsistent with the fulfilment of the
express or implied conditions of the contract of each employee
charged with that act of misconduct.
I
agree with Mr Matinenga that taking part in an unlawful collective
job action could not be a valid defence to the charge preferred
against each of the employees.
The
act of misconduct alleged against each employee in the charge was
proved following a full hearing of evidence. At the time the employer
dismissed each employee it had good cause to believe that he was
guilty of an act or conduct inconsistent with the fulfilment of the
express or implied conditions of his contract of employment.
The
appellant had the right under section 12(B)(2)(b)(i) of the Act as
read with section 2 of the Regulations to dismiss the employees.
Mr
Matinenga relied on the case of Net-One Cellular (Pvt) Ltd v (1)
Communications and Allied Services Workers Union of Zimbabwe (2)
Fifty-Six Net-One, Employees S-89-05.
Net-One,
like the appellant, is a successor company to the Posts and
Telecommunications Corporation. It was using the same employment code
as the appellant at the time its employees embarked on an unlawful
collective job action. The employees in the Net-One case were charged
individually with having been absent from work for a period of five
or more working days without leave or reasonable cause. The
employment code had section 2 of Category 4 which made it an offence
for an employee to be absent from work for a period of five or more
working days without reasonable cause. In charging the employees
Net-One cited section 12B(2)(b)(v) of the Act. A full disciplinary
hearing was conducted, at the end of which each employee was found
guilty as charged and dismissed from employment.
It
was contended on appeal that in charging the employees under section
12B(2)(b)(v) of the Act and not section 2 of the Code, Net-One had
committed an unfair labour practice.
At
p8 of the cyclostyled judgment CHIDYAUSIKU CJ said that participating
in an illegal collective job action could not have been a defence to
the charge faced by the employees. He went on to say the following:
“The
appellant charged the employees individually with absence from work
for five consecutive days without reasonable excuse or cause. I pause
to point out that the employees were not charged with taking part in
or inciting an unlawful collective job action, a charge that falls
squarely under clause 8 of the Code. The employees were charged with
absence from work for more than five consecutive days an offence
under clause 2 of the code and section 12B of the Act.
Disciplinary
hearings were conducted in respect of each individual employee.
At
the conclusion of the disciplinary hearing each of the fifty-six
employees was found guilty and dismissed. It was not in dispute that
due process was followed in respect of each of the employees. In this
regard the appellant, however, purported to act in terms of section
12B of the Act as read with Statutory Instrument 130/2003.”
The
learned Chief Justice held that in citing section 12B(2)(b)(v) of the
Act instead of clause 2 of the Code in charging the employees,
Net-One was not guilty of unfair labour practice as due process was
nonetheless followed in the dismissal of the employees.
The
unlawful collective job action in which the employees in the Net-One
case supra had taken part had ended without a Show Cause Order having
been made in terms of section 106 of the Act at the time disciplinary
proceedings were commenced against individual employees.
The
case supports the contention that the provisions of Part XIII of the
Act do not in the circumstances preclude an employer wishing to take
disciplinary action against employees who took part in an unlawful
collective job action from charging them individually with acts of
misconduct connected with or arising from the collective job action.
In
this case the offence of an act or conduct inconsistent with the
fulfilment of the express or implied conditions of the contract of
employment could be established in respect of each employee by
proving that he took part in an unlawful collective job action.
There
was no similar offence under the employment code.
As
the unlawful collective job action had ended at the time disciplinary
proceedings were commenced, the appellant could not have acted in
terms of any of the provisions of Part XIII of the Act. The appellant
derived the right to dismiss the employees from the disciplinary
proceedings it conducted in terms of section 12B(2)(b)(i) of the Act
as read with section 2 of the Regulations.
The
appeal succeeds with costs.
The
judgment of the court a quo is set aside and substituted with the
following order -
“The
appeal against the decision of the arbitrator succeeds with costs.
The decision is set aside.”
CHEDA
JA: I agree
ZIYAMBI
JA: I agree
Dube,
Manikai & Hwacha, appellant's legal practitioners
Honey
& Blanckenberg, respondent's legal practitioners
